Exemptions from legislation can only be allowed within the scope of existing exemption privileges. The exemption privilege for EC member states referred to in Article 2 (3) of Regulation 1907/2006 EC (REACH Regulation) stipulates that exemptions from this regulation may be allowed for in specific cases for certain substances, on their own, in a preparation or in an article, where necessary in the interests of defense. For the area of responsibility of the Federal Ministry of Defense (FMOD), the enforcement of the REACH Regulation and the exemption possibilities are covered in Section 24 of the Chemicals Act.
Section 24 (1) of the Chemicals Act reads:
“In the area of responsibility of the Federal Ministry of Defense, the enforcement of the Act, the statutory ordinances based on it and the EC Regulations stated in Section 21 (2), sentence 1 will be the responsibility of the Federal Ministry of Defense and the authorities designated by it.”
Section 24 (2) of the Chemicals Act reads:
“For its area of responsibility, the Federal Ministry of Defense may allow for exemptions from the legal provisions stated in paragraph (1) above in specific cases and for certain substances, preparations or articles, where necessary in the interests of defense and admissible under Community law.”
Description of National Procedure
The following results from this legal basis:
• The competent authority within the meaning of the Act is the supervision under public law in the FMoD, which is the supreme Bundeswehr supervisory authority for occupational safety and health and technical environmental protection.
• Within the scope of the legal provisions of Section 24 (2), this authority may allow for exemptions of chemicals legislation which also affect the content of the REACH Regulation.
• According to the legislative intent of the REACH Adaptation Act, interests of defense comprise activities
Ø of the area of responsibility of the FMoD,
Ø of forces stationed in the Federal Republic of Germany on the basis of international treaties, and
Ø of institutions used by the FMoD or these forces to fulfill their respective tasks.
For the implementation of the stated and other legal exemptions, a procedure laid down in Joint Service Regulation ZDv 44/2 “Occupational Safety and Health and Accident Prevention” has been available for years. This procedure is based on the provisions of German occupational safety and health legislation and refers exclusively to defense materiel already introduced or to be introduced in the Bundeswehr. Regarding the approval of exemptions with respect to the REACH Regulation, this procedure is as follows:
- The FMoD is authorized to allow exemptions from the content of the REACH Regulation. The competent authority is the supervision under public law in the FMoD.
- The FMoD may allow exemptions for its area of responsibility, provided they are individual cases which are necessary in the interests of defense and admissible under Community law.
- The Federal Office of Defense Technology and Procurement (BWB) submits a request for approval of exemption, prepares a safety-related comment, and submits both documents to the FMoD for decision.
- When exemptions are granted, sufficient protection of all personnel that may come into contact with the relevant substance or its reaction products as well as environmental protection must be guaranteed in any case. To be able to evaluate how this protection can be achieved the request for approval of exemption from the REACH Regulation must include documents substantiating the request. Such documents include in particular a completed EC safety data sheet for each substance and/or preparation covered by the exemption in accordance with the provisions of Article 31 of the REACH Regulation.
- The BWB or the supervision under public law will decide whether further documents must be submitted.
- The applicant must comply with the conditions imposed when exemptions are granted.
Description of National Safeguard Measures
- National Safeguard Measures mirror those imposed by REACH
- See Introduction part of “Description of National Procedure”
National Bodies Involved
Where to File an Application
Federal Office of Military Technology
Post Office 300165
Conditions/Procedures for Acknowledgment/Recognition of Foreign Defence Exemptions
Foreign defence exemptions are taken into consideration during the national procedure, however the exemption decision will be based on a separate national assessment.
Number of Exemptions Granted
Today, no defence exemption has been granted.
National PoC: TRDir Werner Ax
Phone: 0049 228 12 3010
Link to national web site(s) (if any)
Page Last Updated: 3/1/2011